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Articles: AUSTRALIA

-DRUG AND ALCOHOL TESTING-

Drugs And Alcohol At Work – Developing An Effective Policy

An employee who is affected by drugs or alcohol in the workplace presents a risk to themselves, other employees, customers and your business. Costs to the business can include increased sick leave, damage to property, injury and reputational damage. But what can you do about it?

An employer’s Occupational Health and Safety obligations are generally viewed as paramount when compared to an individual employee’s privacy concerns, at least where the employee is working in what is called ‘safety sensitive’ work (for example, using heavy machinery, working at heights or with flammable materials, driving or flying). Where disputes have arisen in Australia in the past over whether the employer should be able to undertake such testing on employees, industrial tribunals have upheld the employer’s right to do so where ‘safety sensitive’ work is involved.

An employer’s drug and alcohol policy has to be developed to meet the needs of its particular workplace and the type of work involved – there is no ‘one size fits all’. The drug and alcohol policy should also be openly communicated to employees. All employees should be given a copy of the policy and asked to sign an acknowledgment that they have read, understood and accepted the policy. It is equally important that the policy is actually followed on every occasion.

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Confusion Over Workplace Substance Tests

The outcome of an appeal against a controversial Fair Work Australia (FWA) ruling could determine whether employers will be restricted in their ability to administer appropriate on-site drug and alcohol testing procedures. According to the peak body for employers in the resource industry, the AMMA, the recent decision by Fair Work Australia (FWA) to only allow Endeavour Energy to conduct saliva-based drug tests, as opposed to urine tests, is contradictory to previous rulings by the arbitrator.

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Drug Testing of Employees in Australia and New Zealand

A recent ruling by Fair Work Australia has found that making employees submit to urine tests for drug use is “unjust and unreasonable” as the tests can detect drug usage from the weekend. Union members argued that employees could fail a urine test even if they are not still under the influence of a particular substance because cannabis, for example, can remain in the body for up to 90 days. Oral swab tests will now be used instead of urine tests, which only detect THC a few hours after consumption when the user is still impaired and when their ability to do their job will be most affected. Drug testing of employees is becoming increasingly common in New Zealand in certain job sectors such as aviation and mining where the ability of employees to carry out their work safely is paramount. Unlike Australia, it appears that urine testing is still the preferred testing method for cannabis use in the workplace in New Zealand. However, in 2007, the Employment Court held that oral swab testing was not sensitive enough to reliably and accurately detect cannabis and it was criticized for returning more false positives or false negative results than urine testing.

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Drug and Alcohol Testing Issues for Agricultural Workers ??Farm workers in New Zealand and Australia’s valuable sheep industry are currently facing the possibility of undergoing mandatory drug testing. According to Brian Duggan of the National Farmer’s Federation, agricultural workers across the world are watching legal cases that deal with how much right an employer has to know what goes on in a worker’s private life, including issues of drug testing. Farming is different from other high-risk industries that have mandatory testing because many isolated farms may not have access to reliable testing facilities. Despite these obstacles, other officials within the sheep shearing industry say that they expect random alcohol and drug testing to continue to spread from the “elite level” of sporting shearers to the workplace at farms. The initiative has also gained support from members of the Australian Workers Union who say that drug use can be a major hazard in the shearing sheds, with workers sometimes resorting to amphetamine abuse to increase productivity.

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Drug Testing Staff? Doubts Over Test Efficiency

History has been made in the U.S. following the passing of laws in both Colorado and Washington, which legalize both medicinal and recreational use of marijuana. In Australia, drug use remains illegal in all states and territories, and therein lies the issue for employers. The use of marijuana by employees has ramifications for the workplace in a number of ways. Drug testing is essential to ensure the safety of workers, but according to a new report, current testing practices are inefficient and often lead to workers simply changing drugs or avoiding reporting incidents. National Centre for Education and Training on Addiction deputy director Ken Pidd said there is currently little evidence to support the view that current testing practices are effective and the central issue is that workers routinely change their consumption patterns or drug types to avoid detection. Yet drug testing is in many ways a reactive response rather than proactive response. Pidd urges employers to utilize high quality education and training programs, which help develop a workplace conducive to health and safety.

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-DATA PROTECTION AND PRIVACY-

Australian-based Data Subject to Patriot Act: Lawyer

Attorney Connie Carnabuci is warning that data located in Australia but owned or handled by a U.S. company could be accessed under the U.S. Patriot Act, even if it violates National Privacy Principles. Carnabuci says U.S. authorities have the ability to access data stored outside of the U.S. if they can establish a sufficient connection with the U.S and that though a formal subpoena process is in place, an informal request for information would allow for some disclosures. However, companies may have the option of requesting an exemption in some cases. She also notes the eagerness of U.S. companies to assist the U.S. government often results in sacrificing civil liberties in the greater good of national security. Carnabuci suggests companies to “consider the security and confidentiality risks posed by the Patriot Act and store their data with providers which do not have any U.S. connections.”

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Privacy Commissioner’s Tough New Approach To Information Leaks

In a speech to the International Association of Privacy Professionals Australia/New Zealand (iappANZ), delivered on 30 November, the Australian Privacy Commissioner summarized the tough new approach he will take to deal with companies that are careless with customer or user data. Under the current law, the Commissioner’s determinations are enforceable in the Federal Court. The Australian Privacy Commissioner outlined strict new tactics stating that all businesses must have in place robust processes for the collection, storage, use and disclosure of information. This includes rigorous and ongoing training for all employees, the completion and retention of compliance records, and firm strategies in relation to managing contractual arrangements and, particularly, outsourcing provisions. This is especially, though not exclusively, so for trans-border data flows and is particularly relevant for businesses considering using cloud computing services. Businesses should also strive to engender a culture of privacy awareness, confidentiality, data protection and best practice in dealing with personal information.

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Lax Data Privacy Laws Hurt Australia

Australia may be setting a bad example and limiting its options when it comes to providing offshore services due to a lack of strong data protection laws, according to the Council of Europe head of data protection and cybercrime division, Alexander Seger. Seger said that Australia should examine whether it would be appropriate to join Convention 108 — an international agreement for the protection of individuals’ privacy when dealing with automatically processed data. The absence of strong data privacy laws would result in a country missing out on being able to provide offshore services to European citizens. On the matter of cyber security and the requirement for internet service providers to preserve data for 180 days under the Cybercrime Legislation Amendment Bill 2011, Seger noted the problem was even more complex due to different countries specifying different retention periods. He said that the conditions specified by legislation in each country needed to be clearer and, ideally, harmonized to provide greater clarity.

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Mixed Reaction to Improved Privacy Protection

There has been a mixed reaction from the ICT industry to amendments to the Privacy Act with some organizations welcoming the changes while others say more work needs to done on privacy issues. The Privacy Amendment (Enhancing Privacy Protection) Bill 2012 legislation was passed in Parliament and will give privacy commissioner Timothy Pilgrim more powers, including the right to seek civil penalties in the case of serious breaches of privacy. The legislation also permits the commissioner to conduct assessments of privacy performance for both Australian government agencies and private companies. The reforms introduce a single set of privacy principles called the Australian Privacy Principles (APPs) and a number of changes to how personal information is handled, including when it can be used for direct marketing and sent overseas. The Association for Data-driven Marketing & Advertising (ADMA)’s CEO Jodie Sangster welcomed the amendments but said she was disappointed that the opportunity to create a model privacy framework for the digital era had been missed. Organizations that collect or hold information in Australia will need to change their practices to comply with the Privacy Bill before commencement in 15 months’ time.

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-IMMIGRATION-

Check Your Employees or Pay the Price

The Department of Immigration and Citizenship (DIAC) has sent out a stark warning of the significant risks faced by employers that fail to check the immigration status of their prospective employees. Individuals responsible for employing illegal workers face fines of up to $13,200 and two years imprisonment if convicted under Commonwealth legislation. Additionally, companies can also be fined for overall organizational negligence, and face fines of up to $66,000 per illegal worker. “It is the responsibility of employers to ensure that non-Australian workers they hire hold a visa with valid work rights,” a DIAC spokesman said. “Illegal workers in Australia will not be tolerated and the department actively investigates community reports and takes swift action to apprehend non-citizens without work rights.”

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-EMPLOYMENT OUTLOOK-

Recruitment of International Graduates on the Rise

The annual Graduate Outlook Survey by Graduate Careers Australia (GCA) showed a marked increase in the proportion of employers recruiting international graduates, especially in the communication, technology and utilities sector. Executive director of GCA, Dr Noel Edge, said there appeared to be more employment opportunities for international graduates than seen in recent years and many graduate employers continued to rate employment history as a key element of an applicant’s curriculum vitae. In fact, a survey by the International College of Management Sydney (ICMS) demonstrated that employers are right to place emphasis on employment history, as out of more than 500 students, some 76% were not confident in their understanding of current workplace environments.

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U.S. Workers to Fill Skills Gap

Federal Skills Minister, Chris Evans, announced a new streamlined plan to bring skilled U.S. workers to Australia in order to fills gaps in the labor market, especially in the engineering and trades sectors. The measures will allow workers from the U.S. in licensed occupations to be granted immediate access to provisional Australian licenses on arrival. More broadly, the skills assessment process will assure Australian employers that the skills of U.S. workers align with their needs. Evans said as the demand for skilled construction workers is likely to peak over the next three to five years and a number of large-scale resource projects are due to commence, both governments recognize the potential to match the demand with a steady supply of workers in the U.S. Currently, workers need to be assessed onshore, which can mean waiting months between entering the country and starting work. Under the new skills assessment process, U.S. workers will be assessed against Australian regulatory requirements before entering Australia.

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-VULNERABLE POPULATIONS-

Criminal Checks For Volunteers

More than 1.3 million volunteers in junior sport and community groups involving children will be forced to undergo criminal history checks to weed out potential abusers and molesters. At the same time, job seekers who want to work with children will, for the first time, have to pay for their own background test before applying for a job.

Under the changes for volunteers, police records in every state and territory will be examined to check if they have convictions for sex or violence offences against children. The tougher NSW child protection laws, to go before Parliament later this year, will require volunteers, including sports coaches and administrators, to apply for a serial ”clearance” number to show they are fit to work with children. That number will need to be provided every time the volunteer signs on to work with them.

If a person moves jobs, then they must undergo the screening procedure again.

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Call for Criminal Background Checks on Parent Volunteers at Schools

Child protection campaigners are calling for parents who volunteer in school or for after school activities to be subject to mandatory child safety checks. The Bravehearts child advocacy group has made the call as part of a plan to make Australia the safest place in the world to raise children. The call follows the release of a report card on child protection policies across the states, which has ranked the Australian Capital Territory (ACT) and Tasmania the worst for child safety. Criminologist Carol Ronken from the Bravehearts, said there are three piers to preventing child sexual assault: educate children about personal safety, empower and train adults to respond, protect in terms of legislations and policies. In ACT and Tasmania, Ronken expresses a stronger need for legislation addressing child sexual assault and more emphasis on personal safety education within their curriculums and schools. Also as part of the push to improve child safety in schools, Bravehearts wants criminal background checks to be done on parents who volunteer at school activities, child care centers and sporting clubs.

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-BACKGROUND SCREENING-

Tread Carefully When Checking Civil Litigation History

Checking publicly available civil litigation information may ensure organizations safeguard themselves against hiring people found negligent or liable by a civil court, but involves a host of limitations and risks. Court record checks are in their infancy and databases only list more high-profile cases, writs, summons, things such as credit defaults, and cases not marked as private. As is the case with criminal history screening, an employee’s full background must be considered in the context of the essential requirements of a role, and any findings should be discussed with the candidate in question to determine if it is relevant at all to the decision-making process. As an alternative effective measure, global media searches, which span country and language barriers, can be useful in providing articles related to any litigation and are usually easier to understand and more focused than a civil litigation search. ?

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-LEGAL ISSUES-

Wrong Side of the Tracks: Criminal Record Discrimination by Employers

In the recent case of Mr CG v State of NSW (Rail Corporation NSW) [2012], the NSW passenger train operator, RailCorp was found to have discriminated against a job applicant based on his criminal record. A criminal record is a ground of discrimination under the Federal Human Rights Commission Act 1986 (HRCA) and certain State discrimination laws, and the results cannot form the basis of any decision to reject an applicant unless there is a ‘tight and close’ connection between the conviction and the inherent duties of the position. Criminal records include convictions, charges, police investigations, spent convictions and unrecorded convictions, but not all of these will appear on official police records. Employers should: ensure that any equal opportunity policy also relates to recruitment decisions and should educate staff about this policy; consider their obligations under privacy legislation when retaining criminal history information on an employee’s file; and only require information about a candidate’s criminal record if there is a close connection between position requirements and the criminal record.

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Job Candidate Discriminated Against Because of Criminal Record

The Australian Human Rights Commission (AHRC) has tabled a report in Federal Parliament setting out its finding that an employer discriminated against an applicant for a market analyst position on the basis of his criminal record. The applicant, who had previously worked for the employer, had two drink-driving convictions. The applicant failed to disclose one of the offences to the employer. Despite being the preferred candidate and meeting the selection criteria, the employer did not offer employment to the applicant, on the basis that he was incapable of performing the inherent requirements of the position, including complying with the employer’s drug and alcohol policy. The AHRC held that there was “no tight or close connection between the inherent requirements of the job and the exclusion of (the applicant) from employment”. The absence of a criminal record was not an inherent requirement of the position and the applicant was not required to drive or engage in “safety critical” activity. The AHRC found that the applicant’s failure to disclose one offence was “irrelevant” because this wasn’t the reason for the employer’s decision not to hire him. The AHRC recommended that the employer pay the employee $7,500 in compensation for hurt, humiliation and distress.

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The House of Representatives Approves Sweeping Changes To The Privacy Act

Attorney-General Nicola Roxon said the changes would give power back to consumers over the way in which organisations used their personal information. They would simplify credit reporting and strengthen enforcement powers of the Privacy Commissioner, who would be able to apply for civil penalty orders of up to $220,000 for individuals and up to $1.1 million for companies. However, a Labor-dominated House of Representatives committee said the proposed changes were so complex stakeholders found them difficult to understand.

A report by the standing committee on social policy and legal affairs said the amendments were intended to reduce

complexity, but the committee was concerned by “the number of submissions that suggest significant confusion around the new provisions”. It called for an education program because it was worried about whether the public would be able to easily understand new privacy rights and obligations.

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Is a Cafe Scuffle “In the Course of Employment”?

The decision made by the Administrative Appeals Tribunal (AAT) in Ralser and Comcare arose from an incident between two work colleagues who engaged in a disagreement while on a coffee break in a cafe near their workplace. During the disagreement, the Applicant flicked hot coffee in his co-worker’s face and, in response the co-worker punched the Applicant in the upper right arm. The Applicant’s claim for workers’ compensation under the Safety Rehabilitation and Compensation Act 1988 in respect of injuries arising out of the incident was refused and the matter was reviewed by the AAT. Upon review, the AAT rejected the claim because the physical injuries did not occur in the course of the Applicant’s employment. The Applicant also claimed compensation for anxiety and depression caused by bullying and harassment suffered in the workplace, and the AAT held that the Applicant had suffered an injury for which the employer was liable. Employers need to be aware that legal risks in relation to bullying and workplace harassment may also arise when an employee has a ‘perception’ of that conduct occurring. Employers should ensure that complaints of bullying and workplace harassment are dealt with by investigating the complaints when they arise and by providing clear reasons to an employee as to investigation findings when they are made.

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